Pursuing or Defending Claims Assessing Claims, Proving or Defending - - PowerPoint PPT Presentation

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Wrongful Death Claims and Survival Actions: Pursuing or Defending Claims

Assessing Claims, Proving or Defending Liability, Navigating Complex Valuation and Settlement Issues Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific WEDNESDAY, APRIL 26, 2017

Donald Patrick Eckler, Partner, Pretzel & Stouffer, Chicago Daniel M. Gilleon, Partner, The Gilleon Law Firm, San Diego

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Dan Gilleon Donald Patrick Eckler Gilleon Law Firm Pretzel & Stouffer, Chartered 1320 Columbia Street One South Wacker Dr., Ste. 2500 San Diego, CA 92101 Chicago, IL 60606 619-702-8623 312-578-7653 dan@gilleon.com deckler@pretzel-stouffer.com

I. Case Assessment II. Proving or Defending Against Liability III. Evidentiary Issues IV. Assessing Damages V. Negotiating Settlements

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• Wrongful death and survival claims are derogation of

common law

• Identification of applicable statutes
• Any applicable caps need to be assessed
• IC 34-23-2-1 caps love and companionship damages for

unmarried adults with no dependents at $300,000

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• Funeral expenses
• Lost wages
• Hospital expenses

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• Loss of society means benefits of a pecuniary value (that

which can be valued in money), including goods, services, society and companionship which one would have received from the decedent had they not died. Bullard v. Barnes, 102 Ill. 2d 505 (1984)

• Love and companionship
• Loss of services

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• Grief, sorrow, and mental suffering, to the

surviving spouse and next of kin of such deceased person. 740 ILCS 180/2(a)

• Conscious pain and suffering

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Who can recover those damages:

• Spouse
• Children
• Dependents
• More distant relatives

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• Identifying the takers is essential so they can be

notified and represented

• Who are the proper plaintiffs (i.e., standing)?
• Are the plaintiffs likeable, and do they all want the

same attorney?

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• Is the defendant likeable?
• Is the defendant an individual or corporation?
• Collectability issues
• Insurance of potentially culpable parties
• Policy limits
• Other deep pockets or assets

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• Was there an autopsy (or is there time to get one)?
• Meet with key witnesses
• Review of accident and/or police reports
• Scene visit (if possible)
• Collect government information via FOIA or other request,

e.g. death certificate

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• Securing scene or witnesses is critical
• For plaintiffs: considering filing a petition to secure

instrumentalities involved

• For defendants: protect materials, communications,

and involve counsel to take statements and conduct investigation

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• Early identification and retention of experts, particularly

liability experts

• Initial case assessment is critical for budgeting, reserve setting,

and discovery planning

• As discovery and alternative dispute resolution become the

process, accurate early case assessment is vital

• Statutes of limitation

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• Distinction for wrongful death claims: Often times,

the plaintiff’s best witness is dead

• Depending on the case, reviewing co-morbidities
• A plaintiff’s best friend: co-defendants pointing

fingers

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• Threat of bifurcation and ways to mitigate risk
• Don’t overplay (or rely on) sympathy factor to prove

liability

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• Social media is a great tool to determine familial

relationships

• for plaintiffs – preserve it
• for defendants – search for it
• Proving (or disproving) contact with deceased – visitor

logs

• Obtain the guest book from the funeral

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• Dead Man’s Act (varies by state) – a statute designed to

prevent perjury in a civil case by prohibiting a witness who is an interested party from testifying about communications or transactions with a deceased person against the decedent unless there is a waiver.

• Use of grief and sorrow to prove loss of love.
• Danger of “dirt” introduced to prove other issues, like

relationship and life expectancy

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• Comprehensive wrongful death and survival interrogatories

and requests for production inquiring into support and medical condition

• Mental health records related to proving of grief
• Seek divorce or marital counseling records for married

deceased

• Proving (or disproving) conscious pain and suffering require a

thorough review of medical records

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• Lost wages and benefits
• Obtain tax returns using IRS Form 4506
• Obtain pension and/or union records
• Obtain employment records

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• Plaintiff needs economist to provide the whole

economic picture

• Advantages and disadvantages of using an economist

for defendants

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• Punitive Damages – important to remember that

these are generally uninsurable

• Statutory attorney’s fees and penalties
• Statutory caps and insurance coverage

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• Approval of settlement may involve probate court
• Consideration of structured settlement
• Issues related to liens
• Allocation of settlement between wrongful death and survival
• Medicare secondary payer reimbursement issues

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• Conflicts of interest for attorney representing

multiple plaintiffs

• Malpractice liability for an attorney omitting an heir

(and similar considerations for carriers)

• Difficulty in value assessment is a double-edged

sword

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